1. Definitions and Interpretation
1.1 In the Agreement, unless the context otherwise requires:
Act means the Communications Act 2003;
Agreement means in relation to a particular Service these Standard Terms and Conditions, the relevant Special Terms and the relevant Order Form;
Charges means Grapevine’s charges from time to time as set out in Clause 7.3;
Customer Apparatus means any apparatus, and any software embodied therein (including without limitation Purchased Equipment, cabling, wiring, personal computers, network interface cards and network interface adapters) not forming part of (but which may be connected to) the Equipment and used by You in conjunction with any Equipment in order to obtain or use the Service;
Customer Services means Grapevine’s Business Customer Services, contact details of which are set out at the end of these Standard Terms and Conditions;
Equipment means any equipment that Grapevine from time to time leases to You (whether or not any Charges are made for such leasing) in connection with the provision of the Service;
Group means the corporate group comprising Grapevine and each of its holding companies or subsidiaries from time to time and any subsidiary of any such holding company;
Law means any law, statute or regulation, guideline or code of conduct (whether or not having the force of law) in any jurisdiction to which a Party is from time to time subject;
Minimum Period means the specified period stated on your agreement from the Service Commencement Date (or where installation of the Service is phased, means the period from the Service Commencement Date of the last installed element of the Service) or such longer period (calculated from the relevant Service Commencement Date as above) as stated on the Order Form or in the relevant Special Terms ;
Normal Working Hours means 09:00 – 17:00 Monday to Friday excluding public holidays in the United Kingdom;
Order Form means either (i) Grapevine’s standard order form from time to time; or (ii) a Customer Order Form (as defined in Clause 2.2), and in either case used by You and accepted by Grapevine to order the Service subject to the Agreement;
Party means each of Grapevine and You;
Password means a password, code, PIN number, account number, smart card or other security device issued to You by Grapevine;
Price Guide means all and any information relating to Charges for Grapevine’s services, available on request from Grapevine;
Purchased Equipment means any equipment You purchase from Grapevine in connection with the provision of the Service;
Service means the service(s) defined in the relevant Special Terms and set out on the relevant Order Form;
Service Commencement Date means the earlier of (i) the date the relevant Service is available for use by You; or (ii) the date You first use the Service;
Site means the site at which any Equipment and/or Purchased Equipment shall be located or to which the Service shall be provided;
Site Occupier means the occupier (for the purposes of Schedule 2 of the Act) of a Site;
Site Wayleave means Grapevine’s standard form wayleave agreement from time to time to be executed by Grapevine and the Site Occupier in respect of the relevant Site;
Software means any software supplied to You by Grapevine in connection with or to enable You to use the Service;
Special Terms means Grapevine’s additional terms and conditions relating to a particular Service;
Standard Terms and Conditions means these terms and conditions as varied from time to time in accordance with the Agreement;
Survey means any survey or other investigations carried out by or on behalf of Grapevine that Grapevine in its absolute discretion deems necessary prior to the installation of Equipment, Purchased Equipment and/or the provision of the Service;
Grapevine means Grapevine Telecom (Bath) Limited whose registered number is 3481077 and whose registered address is at the time of printing Herston Cross House, 230 High Street, Swanage, Dorset BH19 2PQ. Please note that our registered office may change and You are advised to check for any changes at Companies House;
Grapevine System means the telecommunications system which Grapevine and its Group run;
Grapevine Website means www.grapevine.uk.com or such other address as is notified to You from time to time. For the purposes of the Agreement any website or webpage referred to or accessed via link from the Grapevine Website shall be deemed incorporated into the Grapevine Website;
User Documentation means such brochures, pamphlets, codes of practice and other documents, materials or information, if any, in relation to the Service and/or any Software as Grapevine may publish from time to time either on paper or on the Grapevine Website;
You means the customer with whom Grapevine makes the Agreement as set out in the Order Form, or where appropriate, any person representing You if it appears to Grapevine that such person acts with Your authority or permission. Your shall be defined accordingly.
References in the Agreement:
1.2.1 to a statutory provision will be interpreted as a reference to such provision as amended or re-enacted from time to time;
1.2.2 to a “person” includes any person, partnership, firm, company (as defined in Section 735 Companies Act 1985), body corporate or corporation (as defined in Section 740 Companies Act 1985) or organisation;
1.2.3 to a Party includes its respective successors and permitted assigns and their respective employees and agents; and
1.2.4 to any word in the singular include the plural and vice versa.
1.3 References in these Standard Terms and Conditions to Clauses are unless otherwise stated to Clauses in these Standard Terms and Conditions.
1.4 Headings are for convenience only and do not affect the interpretation of the Agreement.
1.5 Where in the Agreement You agree not to do any act or thing You also agree not to allow (including without limitation, taking all reasonable preventative measures) any other person to do that act or thing. Where in the Agreement You specifically acknowledge any provision or statement, You are deemed to agree to such provision or statement.
2. Ordering Services PLEASE READ CAREFULLY
2.1 To order a Service You must complete and submit to Grapevine Grapevine’s standard Order Form.
2.2 Notwithstanding Clause 2.1 if at its discretion Grapevine accepts an order for a Service placed other than on its standard Order Form (which order is in Clauses 2.2 and 2.3 referred to as being placed on a “Customer Order Form”) or if Grapevine installs a Service without having received from You and/or accepted either Grapevine’s standard Order Form or a Customer Order Form, the Service shall be provided in accordance with the terms of the Agreement.
2.3 For the purposes of Clause 2.2 the Agreement shall incorporate any details, specifications and/or information contained in a Customer Order Form where such details, specifications and/or information would also have been required in Grapevine’s standard Order Form but no other terms and conditions of the Customer Order Form shall be incorporated into the Agreement.
3. Equipment, Purchased Equipment, Installation, Upgrades and Insurance
Where under the Agreement Grapevine are installing Equipment and/or Purchased Equipment:
3.1 Subject to satisfactory Survey, Grapevine shall use its reasonable endeavours to install and connect the Equipment and/or Purchased Equipment so that the Service is available by any requested service date. An order may be cancelled by Grapevine without liability if the results of any Survey are in Grapevine’s reasonable opinion unsatisfactory or if it is not technically feasible to implement and/or support the Service by the requested service date.
3.2 You must provide (at Your cost) appropriate space, power, ducting and environment to install and maintain the Equipment and/or Purchased Equipment at the Site. You must ensure that any necessary preparation is effected before the Equipment and/or Purchased Equipment is connected and in accordance with Grapevine’s instructions (if any).
3.3 If You fail to take delivery or allow installation of the Equipment and/or Purchased Equipment on any agreed delivery or installation date Grapevine may arrange for its storage at Your risk and You shall be liable to Grapevine for the reasonable costs of such storage. Grapevine may also charge You a call out fee together with any costs incurred by Grapevine in relation to such failure by You.
3.4 Unless otherwise agreed in writing You must provide a secure electricity supply at the Site for the installation, operation and maintenance of the Equipment and/or Purchased Equipment at such points and with such connections as specified by Grapevine. Back-up power with sufficient capacity to conform to the stand- by requirements of the relevant British standards is needed if the Service, including the provision of access to emergency services, is required to continue uninterrupted in the event of a failure in the principal power supply.
3.5 Grapevine shall use its reasonable endeavours to comply with Your requests in respect of the location of the Equipment and/or Purchased Equipment but Grapevine’s reasonable decision on this matter shall be final and binding.
3.6 The Equipment shall remain the property of Grapevine or its nominee. You agree to make such ownership of the Equipment clear to all third parties. Grapevine may modify, substitute, renew or add to the Equipment from time to time at its sole discretion provided that such modifications, substitutions, renewals or additions shall not materially and adversely affect the Service. Risk in and liability for Equipment and Purchased Equipment shall pass to You on delivery of the Equipment and Purchased Equipment. Property and ownership of Purchased Equipment shall not pass from Grapevine until You have paid Grapevine the relevant purchase price in full.
3.7 You are responsible for ensuring at all times the safe keeping and proper use of the Equipment at the Site. Except where such loss or damage is solely attributable to the negligent act or omission of Grapevine, its employees, sub-contractors or agents You must indemnify Grapevine for any loss or damage to the Equipment (including but not limited to lightning or electrical damage). In particular (but without prejudice to the generality of the foregoing and without limitation) You covenant:-
3.7.1 not to (and to ensure that no other person shall) sell, let, transfer, dispose of, mortgage, charge, modify, repair, service, tamper with, remove or interfere with the Equipment or suffer any distress, seizure or execution to be levied against any of the Equipment or otherwise do anything prejudicial to Grapevine’s rights in the Equipment;
3.7.2 to keep the Equipment at the Site and stationary at all times;
3.7.3 not to add to, modify, or in any way interfere with the Equipment, including without limitation the connection of any equipment or device designed to divert telecommunications services to a third party telecommunications provider;
3.7.4 notwithstanding the above, in the case of an emergency, to take whatever steps as are reasonably necessary to safeguard the Equipment and to notify Grapevine as soon as possible of the circumstances of such emergency;
3.7.5 not to cause the Equipment to be repaired, serviced or otherwise attended to except by an authorised representative of Grapevine;
3.7.6 not to do anything or knowingly to allow any circumstance, matter or thing, which is likely to damage the Equipment or detract from or impair its performance or operation;
3.7.7 not to remove, tamper with or obliterate any words or labels on the Equipment or any part thereof; and
3.7.8 to permit Grapevine or its agent to inspect, test and maintain the Equipment at all reasonable times and on reasonable notice.
3.8 You must effect and maintain suitable insurance in respect of relevant risks for the Equipment at, on, over or under the Site.
3.9 Grapevine shall have no liability whatsoever for any loss or damage incurred as a direct or indirect result of Your breach of Clause 3.7 and/or Clause 3.8.
3.10 You must immediately notify Grapevine of any loss or damage to the Equipment.
3.11 Following the installation of the Equipment, and/or Purchased Equipment Grapevine shall conduct tests to ensure that the Service is ready for use. If the Service is not ready for use Grapevine shall either repair or replace, at its sole option, the Equipment or any part thereof and repeat the tests. All tests shall if You so request be carried out in the presence of Your duly authorised representative provided that such representative is available at such reasonable times as Grapevine may specify. On successful completion of the tests Grapevine may require You to sign a form confirming satisfactory installation. Where Your representative does not sign such form within 2 working days of being requested to do so, satisfactory installation of the Equipment and/or Purchased Equipment shall be deemed to have occurred.
3.12 Notwithstanding Clauses 3.7.1 and 3.7.2 You may by not less than 30 days’ written notice request Grapevine to re-locate the Equipment and/or Purchased Equipment. Grapevine shall use all reasonable endeavours to comply with such request. You must pay Grapevine’s reasonable Charges for any such re-location. At its discretion Grapevine may require payment of such re-location Charges and any other outstanding Charges prior to commencing any works. At its discretion Grapevine may instruct You to carry out such re-location of the Equipment and/or Purchased Equipment in which event You must carry out such re-location in strict compliance with Grapevine’s instructions. Grapevine shall have no liability whatsoever for any loss or damage to the Equipment, Purchased Equipment and/or Service as a result of such re-location.
3.13 You may request an upgrade to the Equipment or Service. Subject to availability Grapevine shall use reasonable endeavours to comply with such request. You must pay Grapevine’s Charges for any upgrade. At its discretion Grapevine may require payment of such upgrade Charges and any other outstanding Charges prior to the provision of any upgraded Equipment or Service. The provision of all upgraded Equipment and Services is subject to the terms of the Agreement. For the avoidance of doubt any upgrade in the Equipment and/or Service may result in an increase in the Charges for which You shall not be entitled to terminate the Agreement pursuant to Clause 7.4.
4. Customer Apparatus
4.1 At Your request Grapevine may agree, subject to payment of its applicable Charges and satisfactory Survey, to use for the provision of the Service, cabling and/or wiring already installed at the Site. Where You make such request You warrant that You have full title to such cabling and/or wiring and that such cabling and/or wiring and their installation meet all applicable standards and any specifications notified to You by Grapevine. You will provide such written confirmation and/or information in relation to such cabling and/or wiring as Grapevine reasonably requires.
4.2 Grapevine shall have no liability for any loss or damage arising directly or indirectly from use of the Customer Apparatus, whether or not Grapevine shall have recommended the use and/or performance of such Customer Apparatus.
4.3 You are entirely responsible for the security of access to Your computer systems, the integrity of information stored thereon and its security from corruption, change and abuse by others.
4.4 Prior to installation of the Equipment and/or Purchased Equipment You must take all necessary steps to back up and secure Your information and data. You must comply with all reasonable instructions notified to You relating to the preparation of Customer Apparatus and/or the Site. Grapevine shall have no liability for any damage arising from Your failure to carry out such preparations.
4.5 Unless otherwise agreed in writing You are responsible for ensuring that Customer Apparatus is programmed, equipped, compatible and connected for use of the Service in accordance with Grapevine’s reasonable instructions and any other instructions or safety and security procedures applicable to the use of Customer Apparatus. For the avoidance of doubt and subject to Clause 4.7 You are responsible for connecting Customer Apparatus to the Grapevine System.
4.6 Save as stated in the Agreement or as otherwise agreed in writing Grapevine is not responsible for the repair and maintenance of Customer Apparatus.
4.7 You must ensure that all Customer Apparatus is in good working order and complies with applicable standards, approvals and any relevant Law. Grapevine may require You to disconnect (in which case You must do so promptly) or may itself disconnect any Customer Apparatus if in Grapevine’s reasonable opinion: (i) it does not conform to applicable standards, approvals or any relevant Law for the time being in force; or (ii) it may cause injury to any person or material damage to property; or (iii) it may materially impair the quality of any service provided by Grapevine.
4.8 Grapevine has no liability whatsoever where any inability to use the Service is due to incompatibility between Customer Apparatus and the Equipment or Service, or for any breakdown or failure in Customer Apparatus.
4.9 Without undertaking any obligation to do so, where Grapevine assists You in the preparation of Customer Apparatus or its connection to the Grapevine System or Grapevine obtains such assistance from a third party You must pay Grapevine’s or such third party’s charges.
5. Allocation and Use of Telephone Numbers
5.1 Any telephone numbers allocated do not belong to You. You accept that You do not acquire any rights whatsoever in such telephone numbers and You must make no attempt to apply for registration of the same as a trademark, service mark, or domain name whether on its own or in conjunction with some other words or trading style.
5.2 You are not entitled to sell or agree to transfer to a third party any telephone number allocated to You.
5.3 Grapevine shall be entitled, for commercial, operational or technical reasons or in order to comply with the requirement of any competent authority to withdraw or change any telephone number or code or group of telephone numbers or codes allocated or provisionally allocated to You. Where a telephone number is already in operational use by You Grapevine shall use all
reasonable endeavours to give You reasonable prior notice. Grapevine shall not be liable for any costs, inconvenience or other losses (including without limitation marketing and stationery costs) incurred by You as a result of any change or withdrawal as described in this Clause.
5.4 If at Your request a specific telephone number is allocated to You, You shall be responsible for all necessary investigations and inquiries as to the legitimacy or use of such numbers and Grapevine shall have no liability whatsoever with respect to the number chosen and its use by You.
5.5 If You are allocated a number which falls within a range of numbers classified from time to time by OFTEL (or any other competent authority) as being for the provision of a particular type of service, then You must ensure that any service provided by You on that number conforms at all times with the type allocated to that number range.
6. Access to Site
Clauses 6.1 – 6.7 apply where Grapevine requires access to the
6.1 You warrant that You are the current and lawful occupier of the Site and that You are the owner of the Site or a tenant of it under a lease for a term of 12 months or more from the date of the Order Form.
6.2 Any person in apparent authority at the Site who grants entry shall be deemed to have Your authority to grant such entry.
6.3 Where the Site is under Your sole control You shall if requested by Grapevine enter into a Site Wayleave. Where You do not enter into a Site Wayleave:
6.3.1 You grant Grapevine and its employees, agents or contractors the right:
(a) upon reasonable prior notice to You (except in an emergency when no notice shall be required) to execute any works on the Site for, or in connection with, the installation, maintenance, adjustment, repair, alteration, moving, replacement, renewal or removal of the Equipment and, where necessary for the provision of the Service and/or the Purchased Equipment;
(b) to keep and operate the Equipment on, under or over the Site;
(c) to enter the Site to inspect any Equipment kept on, under or over the Site;
(d) to pass and repass if reasonably necessary with or without vehicles and appliances over and along the roads within the Site to exercise the rights set out in Clauses 6.3.1(a) – (c).
6.3.2 You warrant that:
(a) You shall not do or allow anything to be done to the Site that may cause damage to the Equipment and You shall take all steps reasonably necessary to ensure that no-one interferes with or tampers with the Equipment;
(b) You shall not use the Site so as to make any of the rights granted to Grapevine in Clause 6.3.1 substantially more difficult or costly to exercise.
6.4 Grapevine shall cause as little damage as reasonably possible when exercising any of its rights under Clause 6.3.1 and shall make good (to Your reasonable satisfaction) any damage that Grapevine, its employees, agents or contractors may cause to the Site.
6.5 You shall provide a safe and suitable working environment for Grapevine’s employees, agents or contractors at the Site.
6.6 Where the Site is not under Your sole control You shall use all reasonable endeavours to ensure that the Site Occupier enters into the applicable Site Wayleave.
6.7 For the duration of the Agreement and for 60 days thereafter You shall grant and maintain and/or procure the grant and maintenance of any rights and permissions necessary in order for Grapevine to connect and maintain the Equipment at the Site, to provide the Service and to remove the Equipment following termination of the Agreement.
7. Charges, Payment and Interest PLEASE READ CAREFULLY
7.1 It is a condition of the Agreement that You pay the Charges in full without any set-off, deduction, withholding, restriction or condition whatsoever.
7.2 Charges for the Service are as referred to in the Price Guide or as otherwise agreed in writing (including without limitation the Order Form). Notwithstanding the aforesaid Charges are subject to Survey. If following Survey Grapevine incurs unusual additional costs in providing the Service, Grapevine shall be entitled on notification to You to increase the Charges by the amount of such costs. You agree to pay such increased Charges.
7.3 Other than as set out in Clause 7.2 Grapevine may increase or implement new Charges by giving You 30 days’ written notice. Without limitation such notice may be contained in billing information provided to You by Grapevine. Within 7 days of such notification You may give notice to Grapevine to terminate the Agreement. If You do not terminate in such period You are deemed to have accepted the increased/new charges. Grapevine may decrease charges at any time without notice and You shall have no right to terminate the Agreement.
7.4 Other than where Charges are based solely on usage Your liability for Charges starts from the effective date of the Agreement (as referred to in Clause 14.1) whether or not the Service is used. You are liable for the Charges where the Service is used by third parties.
7.5 Charges shall be invoiced by or on behalf of Grapevine in accordance with the relevant Special Terms and shall be payable by You to Grapevine (or such person as Grapevine or the person invoicing on behalf of Grapevine shall specify) within 14 days of the date of such invoice.
7.6 Notwithstanding any other provision in the Agreement, Grapevine may delay or bring forward the sending of invoices to coincide with its billing cycles from time to time. You acknowledge that the first and last invoice in relation to a particular Service may include Charges due for more than one complete billing cycle according to when such Service is connected and/or terminated.
7.7 Grapevine shall be entitled to carry out credit checks on You. Grapevine accepts no liability for the accuracy or otherwise of information provided to it from credit reference agencies. If at any time before or during the term of the Agreement You fail to meet the standard of creditworthiness deemed acceptable by Grapevine, Grapevine shall be entitled:
7.7.1 to terminate the Agreement, in whole or in part immediately on written notice to You;
7.7.2 to require You to make such regular instalment payments in advance on account of any future charges as Grapevine shall deem appropriate;
7.7.3 to impose credit limits on You in respect of Charges and to suspend the Service at any time when such limits are reached until payment in full of such outstanding Charges has been made; and
7.7.4 to impose such other measures on Your right to use any of the Services as Grapevine shall deem appropriate.
7.8 Grapevine reserves the right to charge a deposit to secure amounts payable by You hereunder. Such deposit may be applied by Grapevine against any outstanding Charges due by You hereunder from time to time. No interest shall be payable on any such deposit. The deposit (or remaining balance thereof) shall be repaid to You following proper termination of the Agreement provided the Equipment (if any) is returned to us in good condition (fair wear and tear excepted) and You have paid all outstanding amounts
7.9 If payment is not made when due Grapevine may without prejudice to its other rights, charge interest at 4% per annum above the base rate for lending of Lloyds Bank plc on any amount You fail to pay from the date when payment was due until the date of actual payment. Interest will continue to accrue even if the Agreement is terminated.
7.10 You must reimburse Grapevine all costs and expenses (including legal costs) incurred in the collection of any overdue amounts. Costs and expenses will continue to accrue even if the Agreement is terminated.
7.11 All sums due to Grapevine under the Agreement are exclusive of Value Added Tax or any other applicable tax which shall be charged to You.
7.12 Where prior to entering into the Agreement or at any time during its term, You have indicated any anticipated usage/take up levels of the Service and such usage/take up levels are not met, Grapevine may, without prejudice to any other rights under the Agreement, apply revised Charges. Such revised Charges shall not be subject to Clauses 7.3 or 17.1 .
8. Service
8.1 Grapevine shall provide the Service in accordance with the agreement
8.2 You must promptly supply Grapevine with all information and materials reasonably required by Grapevine to supply the Service.
8.3 Grapevine shall use the reasonable skill and care of a competent telecommunications service provider in providing the Service. However You accept that it is technically impracticable to provide the Service entirely free of faults and Grapevine does not undertake to do so.
8.4 Grapevine shall use reasonable endeavours to meet such general service levels in relation to a particular Service as Grapevine publishes from time to time. However, save as expressly stated in such published service levels, Grapevine shall have no liability for any failure to meet any such service levels.
9. Use of the service
9.1 You undertake not to re-sell the Service or Equipment or any part thereof to any person.
9.2 You undertake to use the Equipment and Service in accordance with such conditions and/or instructions as may be notified in writing to You by Grapevine from time to time and in accordance with Law. Grapevine may from time to time vary the technical and/or operational procedures for use of the Service.
9.3 You must not use or allow anyone to use the Service:
9.3.1 to send or receive a communication which is offensive, abusive, indecent, obscene or menacing;
9.3.2 to cause annoyance, inconvenience or needless anxiety to anyone;
9.3.3 to violate or infringe the rights of any person;
9.3.4 in breach of the Agreement; or
9.3.5 in breach of Law.
9.4 Grapevine may at its discretion suspend the Service and/or terminate the Agreement if You are in breach of Clause 9.3. You must indemnify and hold harmless Grapevine against all liabilities, claims, damages, losses and proceedings arising out of or in any way connected with any use of the Service in contravention of the Agreement or the Law.
9.5 Grapevine may allocate You a Password, to enable You to use the Service. You must keep such Password safe and confidential and notify Grapevine immediately if any third party becomes aware of it. You must not copy or attempt to copy any smart card or other security device. Grapevine reserves the right to change the Password without notice and if it has reason to believe You are in breach of this Clause 9.5 to invalidate such Password and/or to terminate the Agreement.
9.6 Grapevine may (but shall not be obliged) to agree to a request by You to alter a Password. You may be required to pay a charge for such alteration.
9.7 Grapevine reserves the right (but shall not be obliged) to refuse to provide a Service where accurate Passwords are not used.
9.8 If the Service requires You to open an account You must complete the registration process by providing Grapevine or such person as it nominates with current, complete and accurate information as requested from time to time.
9.9 You are responsible for the use of the Service (whether authorised or not and whether by You or any other person), including without limitation all Charges incurred and any breaches of this Agreement.
9.10 Grapevine cannot be held responsible for the setup of private/home setups and their routers unless otherwise asked by the customer, should your router not be compatible with Horizon this is the customers responsibility to arrange a replacement.
10. Software
10.1 Intellectual property rights in the Software remain the property of Grapevine or its licensors. You agree to comply with the terms of the Agreement and any licences required by the owner of any intellectual property right in the Software notified to You by Grapevine or appearing on screen as an integral part of the Service. If You do not consent to any such licences of Software, You may terminate the Agreement in accordance with Clause 14.4
10.2 You may have to use or download certain software (other than the Software) to enable You to use or access certain software applications, portals or services which are available to You via the Services. You shall comply with all licence terms set out by the licensor of such software. If You do not agree to be bound by such licence terms You are not entitled to terminate the Agreement pursuant to Clause 14.4 but You should not use the relevant software applications, portals or services.
10.3 Grapevine hereby grants You a non-exclusive revocable licence to use the Software in executable object code form only.
10.4 The licence granted to You under the Agreement is personal to You and may not be leased, sub-licensed, transferred, assigned, lent or otherwise disposed of.
10.5 If You use the Software in any way which will result in You being in breach of the Agreement or the terms of any individual agreement provided with the Software or attempt to transfer, assign or otherwise dispose of Your licence to use the Software that licence is terminated immediately.
10.6 The Software is protected by copyright law. You must use the Software in accordance with the Agreement and the terms of any individual agreements provided with the Software. Unless otherwise stated in the terms of any agreements/licences provided with the Software or except to the extent permitted by Law You must not copy the Software, except to make a single copy for backup or archival purposes. Any such copy shall be subject to the Agreement as if it were the original and shall contain all notices regarding proprietary rights contained in the Software originally provided to You. If You receive Your first copy of the Software electronically and a second copy on a tangible medium, the second copy may be used only for backup and archival purposes. This licence does not grant You any right to any enhancement, reversion or update to the Software. However Grapevine or its licensors may at any time make available and subject to the provisions of Clause 14.4 require You to accept such enhancements, reversions or updates and may cease to distribute or license previous versions of the Software to You. You must comply with the terms of the Agreement (and any other licence agreements governing such Software) in relation to such enhanced, reversioned or updated Software as if it were the original Software. Grapevine shall be entitled to charge You its then current standard Charges for such Software and any enhancements, reversions and updates.
10.7 You must not attempt to reverse engineer, decipher, decompile or disassemble the Software except to the extent permissible by Law. You must not reduce the Software to human readable form or knowingly allow others to do so, except to the extent that applicable laws specifically prohibit such restriction. You must not modify the Software or create derivative works of the Software. You must not transmit or distribute the Software electronically, via the Internet or in any other way.
10.8 Whilst Grapevine and its suppliers have made reasonable efforts to minimise defects or errors in the Software and to check the Software for viruses, Grapevine does not warrant that Your use of the Software will be uninterrupted or that the operation of the Software will be error free, virus free or secure, or that the Software and the functions of the Software will be merchantable and will meet Your requirements. In addition, the security mechanism implemented by the Software has inherent limitations and You shall have sole responsibility in determining that the Software sufficiently meets Your needs.
10.9 Grapevine warrants that the media containing the Software, if provided by Grapevine, is free from defects in material and workmanship and will so remain for ninety (90) days from the date You receive the Software.
10.10 Subject to Clause 10.11 below Grapevine’s sole liability for any breach of the warranties in Clause 10.9 shall be, in Grapevine’s sole discretion:
10.10.1 to replace Your defective media or copy of the Software; or
10.10.2 to advise You how to achieve substantially the same functionality as described in the User Documentation with the Software through a procedure different from that set forth in the User Documentation; or
10.10.3 to refund the fee You paid for the Software.
10.11 Grapevine’s liability under Clause 10.10 shall be incurred only in the event that You:
10.11.1 inform Grapevine of the breach of warranty during the applicable warranty period;
10.11.2 if requested by Grapevine return the Software to Grapevine; and
10.11.3 provide evidence of the dates You received the Software.
10.12 Repaired, corrected or replaced Software shall be covered by the warranties in Clause 10.9 for the period remaining under the warranty that covered the original Software, or if longer, for thirty (30) days after the date of delivery to You of the replacement media or copy of the Software, or the date Grapevine advised You how to operate the Software so as to achieve the functionality described in the User Documentation.
10.13 The warranties contained in Clause 10.9 are the only warranties made by Grapevine in relation to the Software. Grapevine makes no other express or implied warranty relating to the performance, quality or fitness for a particular purpose of the Software. No agent or employee of Grapevine is authorised to make any modifications, extensions, or additions to this warranty.
10.14 The warranties contained in Clause 10.9 shall be terminated immediately if:
10.14.1 any modifications are made to the Software by You or any third party during the warranty period; or
10.14.2 the media is subjected to accident, abuse, or improper use; or
10.14.3 You violate the terms of the Agreement.
10.15 The warranties in Clause10.9 shall not apply if the Software is used on or in conjunction with hardware or programs other than the unmodified version of hardware and programs with which the Software was designed to be used as described in the User Documentation.
10.16 The Service may comprise software, services, technical information, training materials or other technical data which are subject to the United States of America Export Control Regulations or the laws or regulations of another country. You may not download or otherwise export or re-export, either directly or indirectly, the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations.
10.17 Use, duplication or disclosure by the U.S. Government is subject to restrictions set out in the Federal Acquisition Regulations.
11. Maintenance
11.1 Grapevine shall provide such preventative and corrective maintenance services during Normal Working Hours as it reasonably considers necessary for the proper functioning of the Service.
11.2 If You detect any defect or impairment in the operation or performance of the Service You must notify Grapevine of the nature of such defect or impairment. Grapevine will endeavour to respond as promptly as possible after such notification and endeavour to make the necessary corrections.
11.3 Grapevine will be entitled to charge and You will pay a service fee at Grapevine’s then current charging rates in the event that the need for any maintenance results from any one or more of the following:
11.3.1 misuse or neglect of or accidental or wilful damage to the Equipment, Purchased Equipment and/or Service; or
11.3.2 accidental or wilful disconnection of the Equipment, Purchased Equipment and/or Service; or
11.3.3 Your failure to comply with any of the provisions of the Agreement; or
11.3.4 fault in, or other problem associated with, any telecommunications system not run by Grapevine or in Your own equipment; or
11.3.5 faults of a minor or intermittent nature which do not significantly affect the provision of the Service.
12. Limitations of Liability PLEASE READ CAREFULLY
12.1 Each Party accepts unlimited liability for fraudulent misrepresentation, death or personal injury resulting from its own negligence or that of its employees, agents or contractors while acting in the course of their employment by such Party. However, nothing in this Clause gives a Party any right or remedy which it would not otherwise have.
12.2 Except as expressly stated in the Agreement all warranties, conditions, undertakings or terms, express or implied in respect of the Service, Software, Equipment and Purchased Equipment are excluded to the fullest extent permitted by Law.
12.3 Nothing in the Agreement shall exclude or restrict a Party’s liability for matters which cannot by Law be excluded or restricted.
12.4 Subject to Clauses 12.5 and 12.6 below Grapevine accepts liability for direct physical damage to Your property and the Site where such damage arises solely and directly from the negligence of Grapevine’s employees, agents or contractors while acting in the course of their employment.
12.5 Save in relation to payment of indemnities pursuant to Clauses 3.7 and 9.4 and subject to Clause 12.3:
12.5.1 each Party’s liability (including without limitation liability for negligence) under the Agreement (other than for payment of Charges) shall be limited to an amount not exceeding £50,000 in respect of any one event; and
12.5.2 each Party’s total liability for all claims under the Agreement (other than for payment of Charges) shall be limited to the greater of either (i) £100,000; or (ii) the value of the Charges over the Minimum Period. For the avoidance of doubt, unless minimum commitments regarding Charges have been agreed, usage-based Charges shall not be included in this calculation of the value of the Charges over the Minimum Period.
12.6 Notwithstanding the above neither Party shall have any liability in contract, tort or otherwise (including liability for negligence), for loss or damage, whether direct or indirect, of business, production, data, operation time, goodwill, contracts, revenue, profits, for any loss of anticipated savings, for wasted expenditure or for any indirect or consequential loss whatsoever arising out of or in connection with the performance or non- performance by the Party of its obligations under the Agreement.
12.7 Grapevine shall not be liable for any loss of (or loss of use of) data resulting from Your use of the Service including without limitation any delays, non-delivery or missed deliveries directly or indirectly caused to You by such loss.
12.8 Without undertaking any obligations to give any such advice and/or recommendations, Grapevine shall not be liable for any loss or damage suffered by You as a result of placing reliance on Grapevine’s advice and/or recommendations regarding the use of a third party’s products or services.
12.9 Unless stated in the relevant Special Terms Clauses 12.1 – 12.8 set out each Party’s entire liability (including any liability for the acts and omissions of its employees, agents or contractors) to the other Party in tort, contract or otherwise arising in connection with the performance, contemplated performance or non- performance of the Agreement. You acknowledge that the exclusions and limitations of Grapevine’s liability in the Agreement are reasonable taking into account (amongst other matters) the likelihood that any damages awarded to You for breach of the Agreement by Grapevine may be disproportionately greater than the Charges.
13. Suspension and other Grapevine Powers
13.1 Grapevine may:
13.1.1 in an emergency suspend the Service to provide or safeguard a service to a hospital or other emergency organisation or any other essential services;
13.1.2 temporarily suspend the Service or any part thereof to vary the technical specification of the Service or for repair, maintenance or improvement or to protect life, limb or property;
13.1.3 give such instructions to You about the use of the Service it deems reasonably necessary;
13.1.4 do whatever is required of it to comply with instructions issued by the Government, an emergency service or other competent authority; and
13.1.5 suspend the Service in any circumstance in which it is entitled to terminate the Agreement;
13.2 Except in an emergency when no such notice is required, Grapevine shall give You as much notice as reasonably practicable if the Service is to be suspended but You shall have no claim against Grapevine for any suspension of the Service pursuant to Clause 13.1. Any exercise by Grapevine of its right to suspend the Agreement shall not exclude Grapevine’s right subsequently to terminate the Agreement.
13.3 If the Service is suspended pursuant to Your default You must continue to pay Charges during such suspension and shall reimburse Grapevine’s costs and expenses reasonably incurred by the implementation of such suspension together with all outstanding amounts due under the Agreement. Where Grapevine agrees (at its discretion) to recommence the Service You must pay Grapevine’s reasonable charges in relation to such re-commencement and at Grapevine’s discretion You shall pay a reasonable deposit against future payments.
14. Duration and Termination PLEASE READ CAREFULLY
14.1 In relation to a particular Service the Agreement shall come into effect on the earliest of the dates You sign the Order Form or You start using the Service or the date the Service is available to You.
14.2 The Agreement shall continue in force unless either Party terminates the Agreement by giving the other Party the following notice periods:
14.2.1 30 days’ written notice where the Minimum Period is less than 24 months; or
14.2.2 60 days’ written notice where the Minimum Period is 24 months or more but less than 36 months; or
14.2.3 90 days’ written notice where the Minimum Period is 36 months or more.
The above notice periods shall not be valid unless they expire on or after the end of the relevant Minimum Period.
14.3 Notwithstanding Clause 14.2, You may terminate the Agreement in accordance with Clauses 7.4 and 17.2.
14.4 If You do not consent to any of the licences of Software notified to You pursuant to Clause 10.1 You may within 7 days of such notification notwithstanding Clause 14.2 terminate the Agreement in relation to the associated Service. However Your continued use of the Service or failure so to terminate the Agreement will be deemed to constitute acceptance of the said licences of Software and You shall not be entitled to terminate the Agreement under this Clause.
14.5 Notwithstanding Clause 14.2 Grapevine may terminate the Agreement immediately on written notice if:
14.5.1 any Survey is not in Grapevine’s discretion satisfactorily completed;
14.5.2 any Site Wayleave is not entered into within a reasonable time as determined by Grapevine;
14.5.3 any licence, permission or other approval You or Grapevine require from time to time to connect to Grapevine’s System or provide the Service expires, is revoked or otherwise ceases to be valid and is not immediately replaced by a further licence, permission or approval conferring on You or Grapevine the appropriate rights;
14.5.4 You are the subject of bankruptcy or insolvency proceedings in the United Kingdom or elsewhere, a receiver or administrator (or equivalent) is appointed over any of Your assets or You enter into any formal or informal composition or arrangement (or equivalent) with Your creditors or You or Grapevine reasonably believes that such events are reasonably likely to occur. For the purposes of this Clause 14.5.4 “You” shall include Your direct and/or indirect parent company and “Your” shall be interpreted accordingly;
14.5.5 You make a material mis-statement in the details You have supplied to Grapevine to enable Grapevine to provide the Service;
14.5.6 You materially breach (including without limitation failure to pay any Charges promptly) the Agreement or any other agreement You have with Grapevine or a member of its Group;
14.5.7 Grapevine suspects on reasonable grounds that You may have committed or may be committing (i) a breach of any Law; and/or (ii) any fraud against Grapevine or any third party;
14.5.8 You fail to meet the standard of creditworthiness as set out in Clause 7.9; or
14.5.9 any contract (or part thereof) between Grapevine and a third party provider of telecommunications services is terminated where such termination affects the provision of the Service.
14.5A You may terminate the Agreement immediately on written notice if:
14.5A.1 Grapevine is the subject of bankruptcy or insolvency proceedings in the United Kingdom or elsewhere, a receiver or administrator (or equivalent) is appointed over any of Grapevine’s assets or Grapevine enters into any formal or informal composition or arrangement (or equivalent) with Grapevine’s creditors
14.5A.2 Grapevine materially breaches (including without limitation failure to pay any Charges promptly) the Agreement;
14.5B You may terminate the Agreement during the Minimum Period on giving no less than sixty (60) day’s written notice to Grapevine provided that You pay to Grapevine all Charges that would otherwise have been due during the Minimum Period had the Agreement not been so terminated.
14.6 If Grapevine requests You to do so but You fail to return to Customer Services (or as otherwise notified to You by Grapevine) the Order Form duly signed by You within 14 days of the Service Commencement Date (or any other date notified to You by Grapevine) Grapevine shall be entitled (but not obliged) without notice to terminate the Agreement or, without prejudice to its right so to terminate, to downgrade the Service as it thinks fit.
14.7 On termination of the Agreement any licence granted to You by Grapevine shall immediately cease, You must immediately stop using the Service and all amounts You owe Grapevine for use of the Service shall be due and payable in full and You shall have no right to withhold or set off any such amounts.
14.8 On termination of the Agreement by reason of Your default You shall be liable to pay Grapevine all Charges that would otherwise have been payable by You during the Minimum Period. Grapevine shall not be obliged to refund any Charges paid in advance.
14.9 On termination of the Agreement You must allow Grapevine promptly to remove the Equipment. If You delay prompt removal of the Equipment following termination of the Agreement Grapevine shall until such removal is effected be entitled to continue to charge You and You shall pay such Charges together with any additional costs and expenses caused to Grapevine by such delay.
14.10 The right to terminate the Agreement shall not prejudice any other right or remedy of the Parties in respect of any rights, obligations, or liabilities accrued prior to termination (including without limitation termination under Clause 16).
15. Assignment
15.1 You must not assign or delegate or otherwise deal with all or any of Your rights or obligations under the Agreement without the prior written consent of Grapevine.
15.2 Grapevine may assign or otherwise delegate all or any of its rights or obligations under the Agreement to any person or entity.
16. Force Majeure
16.1 Neither Party shall be liable for any breach of its obligations under the Agreement (other than in relation to payment of sums due) where it is hindered or prevented from carrying out its obligations by any cause outside its reasonable control. Where such cause continues for more than 3 calendar months either Party may without additional liability terminate the Agreement by giving not less than 30 days’ written notice to the other Party.
17. Variation PLEASE READ CAREFULLY
17.1 Subject to Clauses 17.2, 17.4 and 17.5 any variation to the Agreement shall be agreed by the Parties in writing.
17.2 Notwithstanding Clause 17.1 Grapevine reserves the right to amend or vary the Agreement (other than in relation to Charges which are governed by Clauses 7.3 and 7.4) by giving You 30 days’ written notice thereof. Within 14 days of such notification You may give Grapevine not less than 14 days’ notice to terminate the Agreement unless the amendment or variation is imposed by Law when You shall have no right to terminate. If You do not terminate in such period You are deemed to have accepted the variation.
17.3 If You request and Grapevine agrees to a change of Service (including without limitation adding, deleting or exchanging a Service) or a change of Site, You must complete such formalities as Grapevine shall require to give effect to such change and You must pay to Grapevine its then current charges for such change. Grapevine may require payment prior to effecting such change. To reflect such change Grapevine may without notice revise the Charges and the provisions of Clause 7.4 shall not apply to such revision.
17.4 Subject as stated in this Clause, Grapevine may vary the Service from time to time. In this Clause 17.4, “New Service” shall mean the service after variation and “Original Service” shall mean the Service prior to variation. Such variation may be the result, without limitation, of a change of name, method of delivery, change in technology, upgrade or substitution of alternative service and:
17.4.1 the New Service shall have at least equivalent functionality and service levels to the Original Service; 17.4.2 You shall not be charged for such variation; 17.4.3 Charges payable for the Original Service shall apply to the New Service; and
17.4.2 the Minimum Period for the Original Service shall apply to the New Service.
After a variation in accordance with this Clause the New Service
17.5 Grapevine may at any time improve, modify or otherwise alter the Service in the event that:
17.5.1 Grapevine’s suppliers’ services are altered so as to affect the provision by Grapevine of the Service;
17.5.2 in Grapevine’s reasonable opinion the Service should be altered for reasons of quality of service or otherwise for the benefit of Grapevine’s customers as a whole;
17.5.3 technical or regulatory reasons so require
17.5.4 Nothing written on the Order Form (in particular but without limitation in the section headed “Notes and comments”) shall vary any provision of these Standard Terms and Conditions or any Special Terms.
17.6 Nothing written on the Order Form (in particular but without limitation in the section headed “Notes and comments”) shall vary any provision of these Standard Terms and Conditions or any Special Terms.
17.7 Any variation to the Agreement pursuant to Clauses 17.4, 17.5 or 20.1 of these Standard Terms and Conditions shall not be subject to the terms of Clause 17.2.
18. Notices
Unless otherwise stated in the Agreement:
18.1 Notices sent by You to Grapevine shall be sent by hand or post to the Head of Customer Services at the address below or as otherwise notified to You.
18.2 Notices sent by Grapevine to You may be sent:
18.2.1 by hand or by post to Your billing address specified on the Order Form or to Your registered office; or
18.2.2 by fax to Your fax number specified on the Order Form or as otherwise notified to Grapevine in writing; or
18.2.3 by electronic mail to Your electronic mail address specified on the Order Form or as otherwise notified to Grapevine in writing.
18.3 Notice given by hand shall be deemed given the same day. Notice given by post shall be deemed to have been given 3 days after the date of posting. Notice given by fax shall be deemed given when transmitted provided that the sender shall have received a transmission report confirming correct transmission. Any communication by electronic mail shall be deemed to have been made on the working day on which the notice is first stored in the other Party’s electronic mail-box.
19. Marketing and Data Protection PLEASE READ CAREFULLY
19.1 Grapevine may use any information supplied by You for its own administrative and customer service purposes or for any other purpose required by Law. Without limitation Grapevine shall be entitled to disclose information provided by You to any member of its Group, debt collection agency, credit reference agency, credit or fraud monitoring scheme, security agency or credit provider. To enable Grapevine to provide the Service Grapevine shall also be entitled to disclose such information to other telecommunications companies.
19.2 In order to maintain quality and for training purposes Grapevine may monitor and record telephone conversations with You.
19.3 Grapevine shall be entitled to communicate information that describes the habits or usage patterns and/or demographics of the whole or a part of Grapevine’s customer base (including You) but which is anonymous and does not describe or reveal the identity of any particular customer to any third party.
19.4 Grapevine shall be entitled to make Your name, address and telephone number available to the emergency services.
19.5 Unless You have ticked the relevant boxes on the Order Form or You notify Customer Services in writing at the address given below or as otherwise notified to You, Grapevine may:
19.5.1 use information provided by You for market research purposes or to supply You with information about other products or services available from Grapevine or a member of its Group;
19.5.2 provide information supplied by You to third parties for market research purposes or to enable them to supply You with information about their products or services;
19.5.3 make Your name, address and telephone number available to other telecommunications operators for the purpose of telephone directories and a public directory enquiry service.
20 Test or Trial Services and Promotional Offer
20.1 Grapevine may from time to time supply test or trial services and/or promotional offers (“Offers”) to some or all of its customers. Such Offers shall be subject to any terms and conditions (“Promotional Terms and Conditions”) notified by Grapevine to its customers. Unless otherwise stated in the Promotional Terms and Conditions Grapevine shall not incur any liability under the Agreement in relation to such Offers. Promotional Terms and Conditions may require a variation to the Agreement in which case You shall be deemed to have accepted in writing such variation on acceptance of the Offer. Unless otherwise stated in the Promotional Terms and Conditions an Offer may be amended or withdrawn by Grapevine (in relation to some or all of its customers) at any time and without notice. For the avoidance of doubt Grapevine is not obliged to include You in any Offer it makes to its customers.
21. Entire Agreement PLEASE READ CAREFULLY
21.1 The Agreement represents the entire understanding between the Parties in relation to the provision of the Service and supersedes and extinguishes all other agreements or representations (except fraudulent misrepresentations) made by either Party, whether oral or written. In particular Grapevine shall not be bound by any oral or written representation (except fraudulent misrepresentation) made by its representatives unless specifically incorporated into the Agreement in writing.
22. Time Not of the Essence
22.1 Any dates quoted by Grapevine in connection with the provision of the Service or delivery and installation of the Equipment and/or Purchased Equipment shall be treated as estimates only. Grapevine accepts no liability for failure to meet such dates and time shall not be of the essence of the Agreement for this purpose.
23. Miscellaneous
23.1 No waiver by Grapevine of any default by You under the Agreement shall operate or be construed as a waiver by Grapevine of any future defaults, whether of a like or different character. No granting of time or other forbearance or indulgence by Grapevine to You shall imply a waiver of Grapevine’s rights or shall in any way release, discharge or otherwise affect Your liability under the Agreement.
23.2 If any provision of the Agreement shall be prohibited or adjudged by a court of competent jurisdiction to be unlawful, void or unenforceable, such provision shall to the extent required be severed from the Agreement and rendered ineffective as far as possible without modifying the remaining provisions of the Agreement and shall not in any way affect any other circumstances or the validity or enforcement of the Agreement.
23.3 The provisions of the Agreement of a continuing nature shall survive termination of the Agreement for any reason whatsoever.
23.4 In the event of any inconsistencies between the contents of these Standard Terms and Conditions, the Special Terms, the Order Form and the Price Guide, the order of precedence shall (unless expressly stated to the contrary) be (i) the Special Terms; (ii) the Standard Terms and Conditions; (iii) the Order Form; and (iv) the Price Guide.
23.5 In the event of any inconsistency between the provisions of any Site Wayleave entered into by You and Clauses 6.1, 6.3, 6.4 and 6.7, the terms of the Site Wayleave shall prevail.
23.6 The Parties do not intend that the Agreement be enforceable by any person not a party to the Agreement under the Contracts (Rights of Third Parties) Act 1999.
24. Confidentiality
24.1 Each Party (in this Clause “Receiving Party”) undertakes to the other Party (“Disclosing Party”)
24.1.1 to keep confidential the Disclosing Party’s information of a confidential nature obtained from the Disclosing Party in discussions leading to the Agreement and subsequently received pursuant to this Agreement (in this Clause “Confidential Information”); and
24.1.2 not to disclose the Confidential Information in whole or in part to any other person without the Disclosing Party’s written consent, except to the Receiving Party’s employees, agents and sub-contractors involved in the supply or use of the Services (as the case may be) on a confidential and need-to- know basis; and
24.1.3 to use the Confidential Information solely in connection with the supply or use of the Services (as the case may be) and not for its own or the benefit of any third party.
24.2 The Customer shall not disclose the existence or terms of this Agreement to any third party without the prior written consent of Grapevine.
24.3 The confidentiality obligations in Clauses 24.1 and 24.2 will not apply if the Receiving Party is required by court, government or other regulatory body to disclose the Confidential Information, but only to the extent required by law, provided that the Receiving Party gives the Disclosing Party written notice as soon as practicable of such requirement.
24.4 The confidentiality obligations in Clauses 24.1 and 24.2 will not extend to the Confidential Information which the Receiving Party can prove to the Disclosing Party’s reasonable satisfaction:
24.4.1 has ceased to be secret without default of the Receiving Party’s part or
24.4.2 was already in the Receiving Party’s possession prior to disclosure by the Disclosing Party; or
24.4.3 has been received from a third party who did not acquire it in confidence
24.5 Clause 24 shall survive termination of the Agreement or any part of it
25. Governing Law and Arbitration
25.1 The Agreement shall be governed by and construed in accordance with English law and the Parties agree to submit to the exclusive jurisdiction of the English Courts.
25.2 Any dispute arising under the Agreement which does not involve either a complicated issue of law or a sum exceeding £5,000 may be referred to arbitration or such other means of dispute resolution as may be applicable and available from time to time.
Customer Support Team:
19-25 Nuffield Rd, Poole, BH17 0RU
Tel: 0345 123 6677
Email: support@grapevine.uk.com